Canadian Environmental Regulatory Reform Taking Shape

The Government of Canada (GC) recently issued a discussion paper entitled "Environmental and Regulatory Reviews," which outlines its proposed "series of system-wide changes" to the federal environmental assessment (EA) regime, energy regulation by the National Energy Board (NEB), the Fisheries Act and the Navigation Protection Act. Feedback on these changes can be submitted here until August 28, 2017 prior to the GC advancing a "comprehensive suite of changes this fall."

What You Need To Know

The GC's stated objectives are "to regain public trust in environmental assessment and regulatory processes in a manner that advances reconciliation with Indigenous peoples, protects the environment and allows resources to get to market."

The GC has indicated that its changes will be guided by the following principles:

Fair, predictable and transparent EA and regulatory processes that build on what works;

Participation of Indigenous peoples in all phases of such processes that advances the GC's commitment to the United Nations Declaration on the Rights on Indigenous Peoples and reconciliation;

Inclusive and meaningful public engagement;

Timely, evidence-based decisions reflecting the best available science and Indigenous knowledge; and

One project – one EA, with the scale of that EA being consistent with the scale and potential impacts of the project.

Other Key Takeaways

Proposed EA Changes

The GC has proposed the following seven "crosscutting areas of change" with respect to federal EAs:

Addressing cumulative effects. The GC has acknowledged that the current EA process can delay time-bound, individual project reviews by broader policy discussions that relate to cumulative effects. As a result, the GC is considering, among other things, policy frameworks to address complex issues and a deliberate, proactive approach to the assessment and management of cumulative effects.

Early engagement and planning. In response to Indigenous peoples, stakeholders and the public more broadly expressing a desire to be involved earlier in project planning activities, the GC is proposing a "new requirement for an early planning and engagement phase [of an EA], led by proponents with clear direction from government to support better-designed project proposals and more effective assessments and to seek consensus on the project assessment process" (bold in original). The GC is seeking views on the process and outcome.

Transparency and public participation. The GC is considering, among other things, eliminating the "standing" test used by the NEB (which restricts participation), improving participant funding programs and implementing inclusive monitoring and compliance activities (so that regulators work closely with Indigenous peoples, communities and landowners after a project is approved).

Science, evidence and Indigenous knowledge. The GC is considering an open science and data platform to access and integrate the available science, evidence and Indigenous knowledge that supports EA and regulatory processes. The GC is also considering strengthening the rigour of the EA system and outcomes through the peer reviews of science and integration of Indigenous knowledge.

Impact assessment. The GC is considering broadening the scope of EA to include economic, social and health considerations, "consistent use of Gender-Based Analysis Plus (GBA+) in assessments to better understand the impacts on communities" and establishing a single government agency responsible for impact assessments and coordinating consultations with Indigenous peoples. For major energy transmission, nuclear and offshore oil and gas projects, this agency would conduct a single integrated review process with the "life-cycle regulators."

Partnering with Indigenous peoples. The discussion paper indicates that, "Reconciliation must guide partnerships with Indigenous peoples, recognizing and respecting their rights and interests, their deep connection to their lands, territories and resources and their desire to participate as partners in the economic development of their territories." In this context, the GC considerations include "seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue."

Cooperation with other jurisdictions. The GC is considering more comprehensive cooperation with interested jurisdictions (provinces, territories and Indigenous) to advance the objective of "one project – one assessment" and providing flexibility by allowing ministerial approval of exceptions to legislated timelines (e.g., for alignment of assessments with other jurisdictions).

Modernizing the NEB

The discussion paper indicates that the GC "is modernizing and rebuilding trust in Canada's lifecycle energy regulator so that safe and credible projects can proceed." The GC is considering changes to the National Energy Board Act, including with respect to mandate, governance, decision-making, the role of Indigenous peoples and energy operations. Depending on how these proposed changes are implemented, they may have wide-ranging implications. For example, the proposed changes related to mandate include:

defining the public interest (which the NEB considers in its decision-making) to explicitly include environment, safety, social and health considerations; and

authorizing the regulation of renewable energy projects and associated power lines in offshore areas that are under federal jurisdiction.

Expanding the Application of the Navigable Protections Act

The GC is considering the restoration of "lost protections" for the public right of navigation. These include regulating obstructions and certain classes of works (such as, dams and ferry cables) on all navigable waters (in contrast to the current approach of regulating only certain navigable waters listed on a schedule). In addition, the GC is considering the development of a complaint mechanism for works on unscheduled navigable waters to provide a means to address concerns about the public right of navigation.

As part of the GC's commitment to open, accessible and transparent processes, the GC is considering changes that include "clarifying the criteria used for the aqueous highway test in determining whether a water is navigable" and requiring "proponents to provide notice and opportunities for appropriate consultation before constructing a work on any navigable water."

Enhanced Protection for Fish and Their Habitat

As part of the GC's "commitment to restore lost protections and incorporate modern safeguards in the Fisheries Act," the GC is considering regulatory, policy and program changes. The regulatory changes include:

enhancing the protections for fish habitat;

clarifying when Fisheries Act authorizations are needed for projects (and when they are not);

clarifying the factors considered in decisions regarding authorizations and other approvals; and

enhancing enforcement powers.

What's Next?

Given the conceptual nature of the discussion paper, it is unclear how the GC has evaluated or intends to implement various concepts. As a result, participation in the public consultation process may be beneficial to highlight important practical issues and context for the GC's consideration. According to the GC, it is interested in views to inform its decision making as it considers the changes to the EA and regulatory processes that are scheduled to be released this fall.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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